Today's Case law summaries came out and I have read the Jacobs opinion out of the 6th, which is where I practice, and they appear to me to have made the wrong decision in that case. I'm particularly looking at the part of the opinion on page 12 where they are discussing whether the questions proposed by defense counsel include only those facts necessary to lead to a valid legal challenge for cause.

My understanding of the law is that you can ask whether the jury will require the State to prove an element to you BRD, but once you start throwing in a fact like, "Even if you know my client has previously been convicted of a sexual offense," will you still require the State to prove the element BRD, then it becomes improper because that fact isn't necessary to challenge a potential juror for cause. All that is necessary is to ask whether jury will require proof BRD on each element. Am I wrong? What am I missing?

The case they cite to support their argument, the Hanson case out of Amarillo talks about habitual offender punishment where it would be necessary hypothetically to inform the jury that if a defendant has two previous consecutive pen trips the punishment range is enhanced so I don't really see how that is on point... Anyone else have thoughts on this?

This message has been edited. Last edited by: jtkuga,

You can ask jurors "What if you know the defendant has previously committed heinous crimes. Can you set that aside and evaluate the facts of this case on its own merits or are you going to be so biased by that fact that you don't hold the State to its burden?" Because if they say "I can't be unbiased towards someone with priors," then you can strike them for cause because they can't follow the law.

Is that what you're asking?

I feel your pain on that issue.

I got to personally experience being on the wrong end of the Standifer train in Vann v. State.

The question there was "Would you automatically disbelieve the Defendant if he was a convicted felon?". To met this interjected an additional fact (that the Defendant was a convicted felon). I objected and the Court sustained. In short, I got to try it again. My thought was that not only is that an additional fact, but that the Texas Rules of Evidence particularly allow a witness to be impeached on this very issue.

Very frustrating because if the question were to be asked from the other side--would you automatically believe the victim is she were a nun--the answer is different.

This message has been edited. Last edited by: Robert S. DuBoise,

I was pleased to see this thread because I tried this case. This particular defense attorney intentionally asks panel busting questions. We got to the point in this Court where we were having an extremely difficult time picking a jury. The trial judge was doing his best to put the train back on the track. The SPA took over the PDR but it is my understanding that they argued there was error, just not constitutional. I, however, agree with the original post-I think the questions were improper.